Wednesday, February 26, 2014

The Bourne Supremacy: How courts are disenfranchising conservative voters on social issues

Below is the first few paragraphs of an opinion piece I submitted today to the Lexington Herald-Leader on the recent court ruling on Kentucky's Marriage Amendment:

Politics is a messy business. Thankfully, we have the federal courts to deliver us from it.

On Feb. 12, a federal judge struck down a part of Kentucky's Marriage Amendment and in the process partially nullified the votes of 1,222,125 Kentuckians who voted in 2004 in favor of the traditional view of marriage—more than voted for and against any previous amendment on a Kentucky ballot.

In the ruling, Bourne v. Beshear, Justice John Heyburn struck down the part of Kentucky's marriage law that allows Kentucky to determine its own marriage policy by not having to recognize same-sex marriages from other states.
The decision is one of an increasing number of court cases that nullify democratically enacted laws and referenda—or, as in this case, constitutional amendments—
that had been placed on the ballot and ratified by voters.

The Bourne case, like similar cases which are systematically invalidating marriage laws in other states, forcibly takes marriage policy out of the hands of voters and their elected representatives and places it in the hands of unelected federal judges whose political opinions differ starkly from those of the general public.

In fact, on almost every social issue, from marriage to school prayer to abortion, policy is now being made in the least democratic of our branches of government: the federal courts.

21 comments:

what would be the point of having a constitution if it can be overruled in particular states by a simple majority vote?

The whole point of a constitution is that it forms the foundation for law and government in that country, besed on a broad consensus.

If there is a change in the consensus later on, then you need to change the constitution itself, not just do some local vote and then throw a hissy fit if a judge overrules it based on federal law as expressed in the constitution.

I'd love to see what the raction in Kentucky would be if Vermont decided to pass a law banning the ownership of guns with 99 tp 1% popular vote.

Then you'd throw an apoplectic fit about how they are trodding on the constitution and trampling the second amendment!

In this case, Kentucky trampled the 14th amendment. Case closed.

If you want to change constitutional law, you better change the constitution!

It all started when those mean old activist Justices starting overthrowing the people's will to enforce segregation. Don't they understand that civil rights enshrined in the Constitution only belong to the majority, and any group which constitutes less than 50% of the population can be relegated to second class citizenship?

It probably goes without saying that Martin probably has a strong belief that the fate of Edgardo Mortara was justified and righteous. No wonder that he is willing to deprive others of rights legally and innocently conferred by the Constitution and other states.

And little doubt that he would heartily welcome legislation to promote similar fates for children with gay parents.

Let's stick with gun laws, Herr Singring. If a federal court were to require that Vermont's gun laws should apply to a more restrictive state, which side would be screaming then? Right now, this (subject) issue is that gay citizens issued marriage licenses in one state should have those licenses recognized in another. Right now, no judge has said that states have to issue marriage licenses to gays in states with no gay marriage statutes. When that happens things get very interesting indeed. For instance, my concealed carry license should be recognized in all fifty states, right?

Lazy Nazi epithets aside, you are completely missing the point here. The ruling on gay marriage is based on equal protection of civil rights under the federal constitution. You can't deny a group of people civil rights without demonstrating a rational reason why the government should do so.

When a state passes gun laws, these apply to all residents of the state equally and nobody is having their civil rights denied. Different states have theright to impose different levels of gun control as long as they don't violate the second amendment, which is what my eexample was illustrating. In one case -marriage - Kentucky is violating an amendment. In the other - gun licenses - nobody is.

Judges have pronounced the law since the beginning of the U.S. judiciary. "It is emphatically the province and duty of the judicial department to say what the law is." That's from Marbury v. Madison, the 1803 U.S. Supreme Court decision, one of the most basic pronouncements. Judge Heyburn pronounced what the Constitution says, as he is required by Congress and his oath of office to do.

The ruling on gay marriage is based on equal protection of civil rights under the federal constitution. You can't deny a group of people civil rights without demonstrating a rational reason why the government should do so.

Of course, in the state in which this happened, it happened completely according to the laws that governed that country. Are you saying there is some kind of law above the law of the state that should be appealed to in a case like this?

If so, could you tell us something more about this law above the law that you are invoking here?

If there is a change in the consensus later on, then you need to change the constitution itself, not just do some local vote and then throw a hissy fit if a judge overrules it based on federal law as expressed in the constitution.

So it's not okay for voters to change the constitution, but it's okay for unelected judges to do it?

One more thing. Since the will of the majority trumps guarantees of equal protection of the law enshrined in the Constitution, you would have no problem if the majority decided to define marriage as being between one man and one woman who aren't members of the Catholic Church, correct?

Of course, in the state in which this happened, it happened completely according to the laws that governed that country. Are you saying there is some kind of law above the law of the state that should be appealed to in a case like this?

Sure.

If so, could you tell us something more about this law above the law that you are invoking here?

Well, let's start by recalling that the state law you are favoring here (one that TFF would undoubtedly like to see implemented in Kentucky) was a Catholic law - in other words, God's law. I think we can see that this "law" is pretty deficient when it comes to the protection of innocent human beings. No surprise there - if there's anything history tells us, it's that religious law is a pretty gruesome, unforgiving, fundamentally evil concept.

So, what do we turn to? How about ideals in which religious "morality" (what a contradiction in terms) are written out of the code. In which one group of religious fanatics cannot seize power and impose its own special horrors on unbelievers.

Heck, why not codify some of the more fundamental protections? Take women - let's consider them to be fully the equals of men. Heck, let's let them vote (a dangerous concept that flies in the face of religious tenets).

Let's go further - let's insist that no one be permitted to own another human being. (Another practice passed on through the ages by religions of all stripes.)

And due process - let's codify due process so that innocent citizens cannot be set upon (as is inevitably the case in theocracies like the one Martin would see implemented) and unjustly deprived of fundamental tights, accused, prosecuted, and punished (be it burnt at the stake, tortured in some medieval contraption, or by some other preferred means of the ecclesiastical authority) by the (religious) powers that be.

Heck, why not build in some means to prevent authorities from running rough shod. Call the, um, er, (thinking about this ...)

Checks and Balances. Yeah, that works.

Heck, we can give this set of ideals a name (why not - it minimizes the amount of typing I have to do). Let's call it ...

Singring said..."When a state passes a gun law, these apply to all residents of the state equally.." See downstate Illinois and Chicago or Denver and rural Colorado or Philadelphia and rural Pennsylvania. Singring, Germany also has a federal system, just not one with 50 diverse states spread out across a continent. If the courts rule that gay marriage is a civil right nationally, so be it. Right now marriage is a state by state issue, defined in most as a license/contract between one man and one woman.